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Council may have broken open meetings law with ‘secret’ city manager search

Stephen Spillman
A member of the mayor’s security detail stands outside the administrative offices at Austin-Bergstrom International Airport on Thursday. The Austin City Council held city manager job interviews in the secure area of the airport. Stephen Spillman / for American-Statesman

Posted: 5:59 p.m. Thursday, November 02, 2017

Highlights

The Austin City Council might have violated the law Thursday in switching location of city manager interviews.

The council absconded to a secret location before being tracked down by Statesman reporters.

One of the finalists was identified as Chattanooga, Tenn., Chief Operating Officer Maura Black Sullivan.

The Austin City Council might have broken Texas law Thursday when council members left the posted location of a meeting and rushed away in vans that took them to an undisclosed place to conduct interviews with city manager candidates.

Several lawyers who are experts in Texas open meetings law said the council violated the law by leaving the Hilton Austin Airport, where they had intended to conduct the interviews, in favor of a conference room at Austin-Bergstrom International Airport that was inaccessible to the public.

“It’s absolutely ridiculous,” Houston lawyer Joe Larsen said. “Obviously, what they have done is completely outside of the pale. Clearly they are trying to engage in a secret meeting.”

But even as the council, city staff and the search firm took greater lengths to prevent city manager finalists’ identities from being revealed, the American-Statesman confirmed one finalist Thursday as Chattanooga, Tenn., Chief Operating Officer Maura Black Sullivan. In total, the Statesman has confirmed the names of five of nine finalists for the city government’s most powerful job.

The other known finalists are Ann Arbor City Administrator Howard Lazarus, Miami City Manager Daniel Alfonso, Minneapolis City Coordinator Spencer Cronk and former Tulsa City Manager Jim Twombly. Several were identified by reporters who staked out the Hilton.

The Statesman sued the city this week for blocking requests for information about candidates made under the Texas Public Information Act. The paper was amending its complaint Thursday, alleging the council violated open meetings laws with the hasty change of venue.

Mayor Steve Adler, Council Member Kathie Tovo, Council Member Ann Kitchen and a statement from city staffers all said they violated no laws by secretly moving the location of the interviews from the meeting’s posted site. All other council members either did not answer questions or gave no comment on switching locations.

Adler said later that he didn’t feel good about how things happened Thursday, but stood by the actions. The mayor said he felt badly that the council had been unable to maintain the candidates’ confidentiality Tuesday after it had said that it would.

“The whole situation is awkward,” he said. “We want to have an absolutely open process, and we want to make sure we find the absolute finest candidates and, where those things conflict with one another, you get to a place that does not feel good.”

“I believe that we are on solid legal ground in having our executive session in a different location than where we opened up our meeting,” Tovo told the Statesman. “We did make a commitment to those who applied for the job that we would attempt to keep their identities confidential.”

The council in May unanimously voted to keep the names of all candidates a secret until they had decided on a sole finalist. That marked a stark difference from when a previous council hired former City Manager Marc Ott in 2008, when there was opportunity for public input on the finalists. Officials have said that keeping candidates’ names confidential would attract a wider range of applicants.

As on Tuesday, the council began its meeting for the second round of interviews at the Hilton, then adjourned to executive session. Several council members headed to the hotel conference room where they had held their closed-door meeting on Tuesday, but they then boarded two airport shuttles that took them to Austin-Bergstrom airport.

One reporter tried to follow a shuttle in his car only to be blocked by a city staffer who closed and padlocked a gate behind the shuttle. That staffer refused to give his name.

The Statesman later located the council, which was in a conference room beyond the airport’s Transportation Security Administration security checkpoint. The airport’s staff refused to allow reporters to that area of the airport.

Attorneys for the Statesman said that, while there is no clear precedent on whether the council’s change of venue violates the Texas Open Meetings Act, the law clearly requires notice of a meeting’s location. And if the council plans to change the location, the public should be notified, they said.

The Travis County attorney’s office enforces open meeting laws. County Attorney David Escamilla did not return calls and messages Thursday.

Former Travis County attorney Ken Oden said that, to his knowledge, there has never been a legal test of whether holding an executive session at a different location after a meeting has been convened violates the law. Government boards must post the address of where they convene meetings, but the exact rooms where they conduct executive sessions are not typically posted. However, those closed-door meetings are typically in the same building as the public portion of the meetings, he said.

“It is a very tricky question,” Oden said. “I think we have managed to force ourselves into evaluating what would be an esoteric law school question on the Open Meetings Act.”

Austin lawyer and former Travis County Judge Bill Aleshire, who has successfully sued the city over violations of open meetings law in the past, said it does not matter whether the council was in an executive session. Without proper notice of where they intend to meet, the council violated the law, he said.

“I can’t believe that they’re doing this,” Aleshire said. “The attitude that it must take to participate in this, it just breaks my heart that all the members would go along. … I’m heart-sickened by the attitude that not one of them would stand up and say this isn’t right.”

The photo caption with this story has been updated to more accurately describe the job of the city employee pictured.

Eyes on government

Statesman City Hall reporters Elizabeth Findell and Philip Jankowski have mined public records to reveal instances of employee misconduct, explain how city dollars are spent and show how the city failed to address safety issues after a car drove off a downtown parking garage. Their coverage of Austin’s city manager search is providing a public window into a process that city officials have tried to keep secret.

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